Because The ABA Isn’t Irrelevant Enough

Judge: What’s your objection, counselor?

Lawyer: I dunno, Judge. I didn’t take evidence in law school. But it just, you know, feels wrong.

Judge: Denied.

Lawyer: But Ju-uu-ddge, I really feel that its wrong. Why aren’t you respecting my opinion? With all due respect, it’s because you’re an old, white, male cis-hetero-normative shitlord, your honor, and I am outraged at your hatred and demand you recuse yourself immediately.

–Actual trial transcript, February 9, 2017

Welcome to the future of law, ABA version. No longer must an ABA approved law school require students take evidence. But that’s old news. The problem for the ABA is that many law students and young lawyers deem the association irrelevant to their world. And, except for those who bask in the glow of officiousness, the older lawyers have no use for the ABA either.

As membership, and relevance, dwindles, the backroom mavens are busy trying to figure out some way to make this stodgy, yet worthless, organization attractive to new lawyers so they will continue their membership after the free year following graduation. The solution? Suck up.

The House of Delegates, which sets policy for the ABA, will discuss several resolutions that urge more inclusiveness, inside and outside the legal profession, when it meets on Monday, Feb. 8. One of those isResolution 116(PDF), which would urge public companies to diversify their corporate boards to better reflect our nation’s diversity.

Two other resolutions tackle diversity within the legal profession.Resolution 117(PDF) encourages bar admission authorities to consider the effects on minorities of adopting the Uniform Bar Examination, and to include information not included on the UBE, particularly Indian law in areas with large Native American populations. AndResolution 107(PDF) asks attorney licensing agencies with minimum continuing legal education requirements to include programs on diversity, inclusion and the elimination of bias.

Before you start scratching your head at the mere mention of the UBE, itself a concept that defies reason by offering licensure to lawyers who lack any demonstrable competence in the state in which they would be authorized to practice, or the inexplicable reference to Indian Law (can we even say “Indian” anymore?), which is exactly what the UBE is intended to overcome by eliminating the burden of local competency in favor of national legal concepts, despite the fact that the vast majority of lawyers practice in state courts.

Who cares about such trivia, like competence? Not the ABA, which feels the pain of the lack of diversity and inclusiveness.

The resolutionbreaks down the population of the U.S. — which is 50.8 percent women and 49.2 percent men. Along racial lines, the population is 77 percent white, 17.1 percent Hispanic, 13.2 percent African American, 5.3 percent Asian, 0.2 percent native Hawaiian or Pacific Islander. (Yes, I realize that comes to 112.8 percent, but that’s because “Hispanics” can be white or black.)

The resolution is further complicated by its demand for inclusion of persons with disabilities. It might sound good to say public boards should reflect America, but in practice, it would be impossible for every public board to have the correct percentage of non-white members, including an adequate number of LGBTQ and disabled individuals. Such impossibility will lead either to the hiring of under-qualified persons to fill a diversity quota or public shaming of companies that considered all candidates fairly but couldn’t find the right number of appropriate candidates in each “diversity” category.

Naturally, the resolution brings up equal pay for women, ignoring the realities that women often leave the workforce in the prime of their career to care for families or choose to work fewer hours or take less demanding work.

It’s not the first time the ABA has chosen to head down the social justice rabbit hole, guided unsurprisingly by academics who love being on committees.

The ABA appears to have been on the path toward “social justice” for some time now. In August 2015, the ABA jumped on the campus sexual assault hysteria bandwagon, passing resolutions that only included a passing mention of due processafter a member requested it.

But at least that had some connection, albeit tenuous, to law. While practicing lawyers are busy representing their clients, and avoiding anything to do with organizations like the ABA that have proven to be little more than a worthless time-suck of people whose low self-esteem demands that they have some semi-official title, and that has completely lost any purpose in the world of real lawyers, law profs have taken the lead in converting the association to a house organ.

Up to now, the purpose was clear. Since the ABA accredits law schools, and the lawprofs have a vested interest in perpetuating their position so that they can do the hard work of producing scholarly articles that will vault them to professional fame, prawfs worked hard to make the ABA a captive association. Lawyers didn’t care much, because the ABA had nothing to do with their lives and most of us would rather stick a needle in our eye than be on an ABA committee.

But now, the question is whether the American Bar Association has become so totally divorced from relevance as to justify any recognition as having a connection to the profession. The problem is that, to the world outside the legal profession, it would appear as if the ABA speaks for us, represents us, reflects us.

So why not join up, get involved, fix it rather than complain of its irrelevance being exacerbated with this new social justice thrust? That would require some level of interest in its continued existence, in its having a mission worth the time and effort. It doesn’t. It never did. At its best, the ABA was a waste of time. At its worst, it is just an embarrassment to the profession.

The only reason anyone gives a damn is that the public perceives the ABA as being real, having some meaning and influence. They don’t realize that it means nothing to the profession. It can pass all the resolutions it wants. It just can’t pretend that it speaks for lawyers. It does not.

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31 comments on “Because The ABA Isn’t Irrelevant Enough”

A person who does not understand the general theory of the rules of evidence is not competent to advise members of the public as an attorney.

Period, full stop.

I say that as an IP/transactional lawyer of twenty years experience who has been in a courtroom exactly four times. If I did not understand what was and was not potentially admissible evidence I would not be able to competently advise my clients about any number of related things including the structure of confidentiality agreements, what they should and should not say or do when a potential conflict arises with third parties, or retention policies for business records.

Furthermore, if we do not teach evidence in law school, we will unleash hordes of new lawyers on the world who will use the principles they learned watching Law and Order and CSI to guide their thinking. That’s how brains work: they won’t say, “I don’t know,” they’ll remember something they saw on TV and think they know something. (Much the same way that Classics professors now have to inform students that no, Heracles was NOT the son of Zeus and Hera, poisoned by a jealous Hades.) This prospect undoubtedly fills LEO and regulators with glee, but does not bode well for the potential clients of these special snowflakes.

In defense of not taking evidence as a law school class–given the way academics teach, someone who learns evidence entirely through BAR/BRI’s courses that actually focus on black letter evidence law as it applies in practice may very well be better off than someone who learned evidence from a professor who spends half the semester on why corroboration and authentication requirements are unjust oppression of rape victims.

I say this as someone who didn’t take evidence in law school, practices as a litigator, and found that my colleagues who had taken evidence in law school were no better, and in many cases were worse at handling evidence issues. And when I compare that to civil procedure, where I learned very little of relevance because my professor spent half the class on class action issues…

That was my experience, too. Word here in Idaho is that our University of Idaho Law School will stop teaching criminal law altogether. In its place- Criminal Mediation. Because that’s the future of law.

The term, “bar association” is misogynist, and they should be banned from continuously mailing requests for money to the address I used to live at. They have even less relevance to my crumbled oreos than they have to your job. And srsly, “bar association”, I just literally can’t even right now. #ijustliterallycantevenrightnow

The whole “proportional representation” bit is a load of obscure crap.

The ABA is often claiming XXX are “under-represented” as partners, judges, or tenure track professors. But whether XXX is men, women, POC, or any other identifiable class, you’re faced with a series of ever-shrinking sets if they follow the traditional track:

1) XXX in population
2) XXX in college
3) XXX applying to law school with GPAs over 3.3 and LSAT scores over 150
4) XXX matriculating at some sort of top-100 law school
5) XXX graduating in top 10% of class
6) XXX with successful law careers
7) XXX with a decade of experience in said successful career
8) XXX employed as partner, judge, or tenured professor.

Proportionality fixes should–must–happen at the step where there is disproportionality. If you can’t get XXX to do well on the LSAT and obtain high GPAs, you need to fix that BEFORE they graduate college.

The ABA tends to do that precisely backwards. They ignore the main sources of disporportionality (#3, 4, and 5) and focus mainly on #8.

Scott H. Greenfield

Nothing in this blog constitutes
legal advice. This is free.
Legal advice you have to pay for.EmailTwitter: @ScottGreenfield

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